Workcover/Mmi (Griffin Press Pty Ltd) v Gibson [2000] SAWCT 33

Workers Compensation Tribunal (SA)|2000-04-04

1 This is an appeal from a decision of a Deputy President. It concerns the methodology of fixing average weekly earnings pursuant to s 4 of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

2 The respondent worker suffered an injury to his left knee in the course of his employment with Griffin Press Pty Ltd on 27 October 1992. The injury was accepted as a compensable disability. The learned Deputy President made a finding, not now challenged, that at all relevant times since his injury in October 1992 the respondent has been partially incapacitated for work. There were, over this period, some periods of total incapacity when the respondent was having medical treatment and/or was convalescing from same. At such times he was in receipt of weekly payments. At other times he continued to be employed in his trade at Griffin Press, albeit with some accommodation of his disability, up until October 1996 when he accepted a voluntary retrenchment package. His voluntary retrenchment was motivated by a likelihood then that he would be returning to England from where he had emigrated in 1990. This did not eventuate and in January 1997 the respondent obtained work with Protectaprint. It was work for which he was better suited having regard to his disability than that which he had been doing at Griffin Press.

3 Unfortunately, after only a very short time it became necessary for him to undergo more medical treatment on his knee. In February 1997 he underwent arthroscopic surgery and was off work from 11 February 1997 to3 March 1997. He then returned to work.

4 In January 1998 he underwent a palectomy. He had not returned to work when in July 1998 he had a further operation to shorten a tendon. He has not worked since and continues to be totally incapacitated following that surgery.

5 His weekly payment claims in respect of these periods off work, from 11 February 1997 to 3 March 1997 and from January 1998 based on total incapacity for work, were accepted.

6 By determination dated 28 August 1997 WorkCover Corporation ("the Corporation") by its agent MMI Workers Compensation (SA) Ltd ("MMI") set the respondent's rate of weekly payments for total incapacity for work in respect of the first period at $390.92, this being 80 per cent of his original rate set in 1992.

7 When employed by Protecaprint in 1997 the respondent's weekly rate of pay was approximately $550, and it is the respondent's assertion that this should be his average weekly earnings rate.

8 By determination dated 28 January 1998 the Corporation again set the respondent's rate of weekly payments in respect of the second period at $390.92. The respondent asserts that this rate should have been set at $636.00 per week.

9 At judicial determination argument focused on the fixing of "the relevant date" within s 4(2)(b)(i) of the Act. This in turn involved interpretation of the definition of "the relevant date" in s 4(9)(a)(i) of the Act.

10 The learned Deputy President concluded that "... as the worker made no claim for income maintenance in relation to any period of partial incapacity prior to his retrenchment in 1996, the relevant date for the setting of average weekly earnings for the relevant periods is 12 months immediately preceding February 1997 and January 1998 respectively". We suspect that what the learned Deputy President intended was that the relevant dates were February 1997 and January 1998 respectively. This appeal does not turn on this apparent error of expression by the learned Deputy President, but rather concerns the basis on which she reached the conclusion that she did.

11 It was the learned Deputy President's view and it is central to her decision, notwithstanding her finding that the respondent has been partially incapacitated for work continuously since October 1992 on account of his compensable disability, that s 4(9)(a)(i) refers to a period of claimed incapacity and that as the respondent's periods of previously claimed incapacity ended when he returned to work at Griffin Press (and thereby authorised the discontinuance of his weekly payments pursuant to s 36 of the Act) new periods of claimed incapacity had commenced in February 1997 and January 1998 respectively.

12 Mr Rowell, for the appellant, submitted before us that the word "incapacity" has been ascribed a technical meaning in workers compensation legislation and case history, meaning the impairment of the ability to sell one's work for wages irrespective of whether there is shown economic loss, and that its use in s 4(9)(a)(i) of the Act should be interpreted consistently with this and with its use and meaning elsewhere in the Act. It should be presumed, he said, that Parliament intended the same technical meaning when it used that word in s 4(9)(a)(i).

13 A period of incapacity continued, he submitted, whilst incapacity persisted as a matter of fact and not because it was asserted or claimed with or without the provision of a medical certificate. A medical certificate was no more than evidence of incapacity.

14 In this instance, he said, the worker's entitlement to weekly payments ceased when he returned to work at Griffin Press, but his incapacity continued. His incapacity commenced in October 1992 and continued thereafter.

1. That the worker's average weekly earnings should be fixed by reference to s 4(1) of the Act and that it was neither necessary nor appropriate to have resort to the other parts of that section. It was only when s 4(1) could not provide an answer that the other provisions needed to be resorted to (tr 27). The concept of average weekly earnings in s 4(1) is directed to the future and not to the past. Upon lodgement of the worker's further claim for compensation, the Corporation was obliged to investigate and determine that claim, and as part of that process to determine afresh the worker's average weekly earnings for the particular period of incapacity giving rise to that claim. If s 4(1) was to be heeded, Mr Reinboth submitted, this required that the Corporation have regard to the worker's earnings at that time, ie at the time in respect of which the worker was claiming weekly payments. Accordingly, the worker was entitled to have his average weekly earnings fixed by reference to his earnings in February 1997 and January 1998 respectively.

2. That if reliance was to be had on s 4(2)(b)(i), and therefore s 4(9)(a)(i), to interpret "the relevant date", the learned Deputy President was right in finding that the worker had been incapacitated for work for a number of separate periods, on the basis that periods of incapacity had ended when he ceased to claim or assert incapacity in the appropriate manner.

16 We do not think that sole focus on s 4(1) of the Act to the exclusion of other paragraphs of s 4 or the Act as a whole reflects a proper approach. The courts have frequently said that an Act of Parliament must be read as a whole. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". The process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490.

17 This may require a section to be read more narrowly than it would if it stood on its own: Ross v R [1979] HCA 29; (1979) 25 ALR 137 at 145. The same approach applies in regard to the operation of expressions within a particular section: "Their meaning and operation must be read with and accommodated to the rest of the section": per Barwick CJ in Taylor v Public Service Board [1976] HCA 36; (1976) 10 ALR 211 at 215.

18 Moreover, s 4(1) of the Act does not alone provide an answer to the fundamental issue in this matter, that being whether the Corporation was, upon lodgement of the worker's further claims, required to make fresh determinations of the worker's average weekly earnings by reference to his earnings at the time his further claims were made. As Doyle CJ observed in WorkCover Corporation of South Australia v Marina (1996) 185 LSJS 230 at 237, the fact that s 4(1) directs the concept of average weekly earnings to the future and not to the past does not assist in deciding the meaning to be given to s 4(9)(a)(i).

19 S 4(2)'s reference to "the relevant date" and s 4(9)'s definition thereof suggests that it was Parliament's intention that average weekly earnings would be calculated at the commencement of the period of the worker's incapacity for work or, where there was more than one separate period of incapacity resulting from a compensable disability, at the commencement of each separate period. Once thus fixed, the Act provides various means by which that rate may be varied.

20 As recognised by the learned Deputy President, the point in issue here is whether there was only one or more than one period of incapacity. By interpreting the Act's references to periods of incapacity as references to claimed periods of incapacity, the learned Deputy President concluded that there were separate periods of incapacity notwithstanding the worker's continuing actual incapacity for work.

21 The argument that a period of incapacity following a return to work warrants the resetting of "the relevant date" for the purposes of s 4(9) was put to and rejected by the Full Supreme Court in Marina's Case (supra).

22 The learned Deputy President distinguished Marina's Case on the basis that here, unlike in Marina's Case, the worker had not claimed or asserted incapacity (by the presentation of certificates) other than for his various claimed periods of total incapacity for work.

23 With respect to the learned Deputy President, the evidence does not support that finding. Whilst it is apparent that not all of the medical certificates were before the learned Deputy President, many of those that were certified as to the worker's partial incapacity for work. For example, on 19 April 1993 the worker's general practitioner Dr Risely certified the worker fit for "light duties, restricted weight bearing for one week" as from 20 April 1993. On 31 January 1994 Dr Karuna-Ratna certified the worker fit for full-time light duties "as per previous certificate" from the date of this certificate. It can be inferred from the worker's statement and the medical reports that for some months prior to February 1994 he was working. The worker describes "normal duties". His statement of interview suggests that he worked his normal duties with the qualification that he avoided, wherever possible, heavy lifting, bending and climbing. On 26 May 1994, 25 June 1994, 25 July 1994, 5 September 1994 and 17 October 1994 Dr Bradley certified the worker fit for modified duties for specified periods.

24 We have approached a review of the learned Deputy President's finding and the evidence with much caution, recognising that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J at 77. Menzies J said much the same thing in R v The District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654:-

"Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law."

25 But given that there is no evidence that positively establishes that no certificates were ever provided to support a claim for partial incapacity, and the fact that there is evidence, as outlined above, that shows that certificates of that category were provided, we think it can be said that the learned Deputy President made a finding in the absence of evidence and as such made an error of law; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 64 ALJR 462 at 477 - 478.

26 In our view, the basis upon which Marina's Case was distinguished has not been made out.

27 If we are wrong about our review of the learned Deputy President's finding and if, as a matter of law, it must stand, we would nevertheless conclude that the learned Deputy President was wrong to have distinguished Marina's Case. As in Marina's Case, the learned Deputy President here found as a fact that at all relevant times since his injury in October 1992 the worker had been incapacitated for work in the sense of having a physical disability or limitation upon his capacity to perform work. As in Marina's Case, so here, the worker's return to work "merely masked the continuance of that incapacity", relieving the Corporation of the obligation to make weekly payments in respect of the subject incapacity.

28 Having acknowledged that s 35 and s 4(9) of the Act distinguished between a worker's incapacity for work and entitlement to weekly payments, Doyle CJ in Marina's Case went on to say at 237:-

"A period of incapacity ends if the worker recovers. It may be that it ends if the worker ceases to assert incapacity in an appropriate manner, that is, it is not necessarily coincident with the fact of incapacity. I do not need to decide that. It may that it ends or terminates in other ways. I do not wish to decide that."

29 The learned Deputy President cited this dicta in reaching the conclusion that she came to. With respect to the learned Deputy President, we think that if Parliament had intended the period of a worker's incapacity for work not to be co-incident with the fact of his incapacity then it would have made this clear. The uncertainty engendered by the proposition that the two are not co-incident is immediately apparent, and the distinction hitherto drawn by the legislation and case authorities, including Marina's Case, between incapacity for work and entitlement to weekly payments is extinguished.

30 It would be odd and would lead to considerable uncertainty if a period of incapacity, as recognised by the Act, commenced and ended upon a worker's assertion or non-assertion of incapacity, whether this be done by the provision or non-provision of a medical certificate or otherwise. A certificate can at best be evidence of incapacity. The case cited by Mr Rowell, Mastrantone v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Remm Constructions) A37/1998, is but one instance where certificates of incapacity have been ignored. As was noted in Mastrantone's Case, whether or not a worker remains incapacitated for work is a question of fact:-

"If the worker here continued to be partially incapacitated for work from the compensable disability throughout the time since 1991, then the relevant date for the purposes of calculating his weekly payments pursuant to s 4(2) would be May 1991. If however the worker had recovered from the incapacity at some past point in time such that this latest period of total incapacity is a separate period then the relevant date for the setting of his weekly payments would be twelve months prior to the commencement of the last such period in December 1993.

Whether the worker remained partially incapacitated from the compensable disability sustained in May 1991 is a question of fact ..." (Mastrantone decision 5)

31 If a period of incapacity ends because a worker ceases to assert incapacity in the appropriate manner, eg does not present a certificate of incapacity, it seems that this would inevitably lead to the possibility of frequent recalculations of the amount of average weekly earnings. As noted by Doyle CJ in Marina's Case (supra) this seems an unlikely result because of its unwieldy nature.

32 The application of the Act does not always match a worker's entitlements to current events. This was acknowledged by Doyle CJ in Marina's Case at 238:-

"... the Act is one which necessarily involves sacrifices of flexibility in favour of certainty, and is one which does not attempt to match exactly entitlements and current events."

33 In the absence of clear words from Parliament indicating an intention to qualify the phrase "period of incapacity" in the manner suggested by the learned Deputy President, we see no reason to depart from the interpretation accorded that term in Marina's Case.

34 We allow the appeal and set aside the decision of the learned Deputy President. The relevant date for the setting of the worker's average weekly earnings is 27 October 1992.

Rehabilitation and Compensation Act 1986

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